Huthnance v. District of Columbia et al

MOTION for Extension of Time to Effect Service on Defendant J. Morales

D.D.C.August 30, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LINDSAY SMITH ) ) Plaintiff, ) ) v. ) ) THE DISTRICT OF COLUMBIA, ) et al., ) Case No.: 06-1871 (HHK) ) Defendants. ) ____________________________________) MOTION FOR EXTENSION OF TIME TO SERVE PROCESS COMES NOW Plaintiff, by and through undersigned counsel, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Local Rule 7, and respectfully Moves for an extension of sixty (60) days, or until November 4, 2007, to serve process upon Defendant Officer J. Morales. The grounds for this Motion, as fully explained in the accompanying Memorandum of Points and Authorities, are as follows: 1. Despite best efforts by Plaintiff to serve Defendant Morales, Plaintiff has thus far been unable to locate the Defendant. 2. Plaintiff has attempted to obtain consent to serve the MPD General Counsel’s Office on behalf of Officer Morales, but has been informed that the MPD and Defendant District of Columbia cannot locate Officer Morales. Case 1:06-cv-01871-HHK-JMF Document 25 Filed 08/30/2007 Page 1 of 2 2 3. Plaintiff has attempted to serve Officer Morales numerous times at his assigned duty station but has been met with evasive tactics by the MPD aimed at shielding Officer Morales from lawful service. 4. Plaintiff attempted a property records search to locate Officer Morales’s home address, which revealed over 180 potential locations in Washington, D.C. alone; the District has ignored requests for additional information concerning Officer Morales (including, for example, the Officer’s first name), and therefore it will prove inordinately difficult to serve Officer Morales without an extension of time. Respectfully submitted /s/ Joshua Ian Rosenstein John Moustakas (DC Bar # 422076) Joshua Ian Rosenstein (DC Bar # 482585) Goodwin | Procter LLP 901 New York Avenue, NW Washington, DC 20001 (202) 346 - 4000 (202) 346 - 4444 (fax) Arthur B. Spitzer (DC Bar #235960) Frederick V. Mulhauser, (DC Bar # 455377) American Civil Liberties Union of the National Capital Area 1400 20th St., NW, Suite 119 Washington, DC 20036 (202) 457-0800 (202) 452-1868 (fax) Attorneys for Plaintiff Lindsay Huthnance August 30, 2007 Case 1:06-cv-01871-HHK-JMF Document 25 Filed 08/30/2007 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LINDSAY SMITH ) ) Plaintiff, ) ) v. ) ) THE DISTRICT OF COLUMBIA, ) et al., ) Case No.: 06-1871 (HHK) ) Defendants. ) ____________________________________) [PROPOSED] ORDER Upon consideration of the Plaintiff’s Motion for Extension of Time to serve Defendant Officer Morales, and for good cause shown, it is hereby ORDERED that: The Plaintiff’s Motion is GRANTED. Plaintiff shall have an additional sixty (60) days, or until November 4, 2007, to serve process upon Officer Morales. Dated: ______________ __________________________________ Henry H. Kennedy, U.S.D.J. Case 1:06-cv-01871-HHK-JMF Document 25-2 Filed 08/30/2007 Page 1 of 1 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LINDSAY SMITH ) ) Plaintiff, ) ) v. ) ) THE DISTRICT OF COLUMBIA, ) et al., ) Case No.: 06-1871 (HHK) ) Defendants. ) ____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION FOR EXTENSION OF TIME TO EFFECT SERVICE ON DEFENDANT OFFICER J. MORALES Plaintiff Lindsay Huthnance submits this memorandum in support of her motion to extend the deadline for service of process upon Defendant Officer J. Morales (Badge Number 273) by sixty days, until November 4, 2007. An extension is warranted because, despite best efforts, Plaintiff has been unable to locate Defendant Morales to effect service upon him.1 After learning the identities of three Metropolitan Police Department (“MPD”) officers who unlawfully and unconstitutionally detained, searched and arrested her, Plaintiff filed an Amended Complaint with the Court on May 8, 2007, naming as defendants MPD Officers L. Acebal (Badge Number 1313), J. Morales (Badge Number 273), and J. Antonio (Badge Number 4409). Pursuant to Fed. R. Civ. P. 4(m), she then had 120 days in which to serve the newly-named defendants. Plaintiff employed a 1 In response to a request for consent to the relief sought herein pursuant to LcVR 7(m), Counsel for Defendant District of Columbia has indicated that the District takes no position on the disposition of this motion. Case 1:06-cv-01871-HHK-JMF Document 25-3 Filed 08/30/2007 Page 1 of 4 2 professional process service company located in the District of Columbia to effect service upon the Officers. During the months of June, July and August 2007, the process servers made numerous attempts to serve the three defendant Officers at the Third District Station, their assigned MPD station house. See Affidavit of Daniel F. Portnoy (“Portnoy Affidavit I”) at 1; August 21, 2007 Affidavit of Daniel F. Portnoy (“Portnoy Affidavit II”), attached hereto as Exhibits A and B, respectively. During each attempt at service, the process servers were given misleading information concerning the officers’ whereabouts, including one instance on the same day when the process servers were told that Defendant Acebal was both on duty (but on assignment) and off duty altogether for the day. See Portnoy Affidavit I. Unfailingly, however, with regards Defendants Antonio and Morales, the process servers have been told that the Officers were either not present or could not be located. See Portnoy Affidavit II. After several unsuccessful attempts to serve Officer Acebal, Plaintiff conducted, at considerable expense, a property records search of the initial and name “L. Acebal” in the metropolitan area. The search revealed only one match, and based on that information, Plaintiff ultimately was able to serve process on Officer L. Acebal on August 2, 2007. See Docket Document No. 20, Affidavit of Service on Defendant Acebal.2 Plaintiff, faced with similar evasive tactics by the MPD in trying to effect service on Defendants Morales and Antonio at their assigned duty stations, conducted a property 2 On August 24, 2007, after learning that Defendant Acebal would “consent” to service being effected upon Ronald B. Harris, Assistant General Counsel for the MPD, Plaintiff transmitted a courtesy copy of the Amended Complaint, Summons and Affidavit of Service upon Mr. Harris, and agreed not to seek a default judgment against Officer Acebal until no fewer than twenty days from the date of the courtesy transmission. Case 1:06-cv-01871-HHK-JMF Document 25-3 Filed 08/30/2007 Page 2 of 4 3 records search. Plaintiff’s attempts to obtain the home addresses of the remaining defendant officers have been unsuccessful, as a search for the first initial and last name of each defendant - the only identifying information Plaintiff currently has - yielded 18 individuals named J. Antonio, and 189 individuals named J. Morales in the District of Columbia alone. See Exhibit C, Affidavit of Joshua Ian Rosenstein. Faced with these difficulties, Plaintiff, through her counsel, contacted Counsel for the District of Columbia to request additional identifying information about the defendant officers, or, alternatively, to determine whether the officers would consent to Counsel accepting service on their behalf. The District of Columbia replied by informing Plaintiff that Officer J. Antonio would consent to being served through the Metropolitan Police Department’s General Counsel’s Office, but indicated that Officer J. Morales could not be located in order to determine whether he would similarly consent. Id.3 Plaintiff has not yet been able to serve Officer J. Morales as, despite repeated requests, she has not received any additional identifying information about the defendant that would allow her to narrow the list of 189 matching individuals in the District of Columbia. Concurrently, Plaintiff’s process servers have continued to visit the Third District Station in the hopes of serving Defendant Morales, but have continually been subjected to diversionary tactics meant to frustrate service. And inexplicably, the District and the MPD General Counsel’s office have somehow been unable to locate an MPD officer to obtain consent for service upon the General Counsel as a substitute. The Court has broad discretion under Rule 4(m) to extend the time for service. See FED. R. CIV. P. 4 advisory committee's note, 1993 Amendments, subdiv. (m) (Rule 3 Officer J. Antonio was subsequently served via the Metropolitan Police Department’s General Counsel’s Office. See Docket Document No. 24, Affidavit of Service. Case 1:06-cv-01871-HHK-JMF Document 25-3 Filed 08/30/2007 Page 3 of 4 4 4(m) "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown."); Tafler v. District of Columbia, No. 05-1563, 2006 U.S. Dist. LEXIS 81714 (D.D.C. Nov. 8, 2006). Given the considerable efforts undertaken by Plaintiff to locate Defendant Morales in the face of months of evasive tactics by the MPD, and given the inability or unwillingness of the District of Columbia to either provide identifying information about the Defendant or to locate one of its own MPD Officers to determine whether he will consent to substituted service, good cause exists for this Court to extend the deadline in which Plaintiff must effect service upon Officer Morales by sixty days. CONCLUSION For the reasons indicated above, the Court should grant Plaintiff’s motion for enlargement of time. Respectfully submitted /s/ Joshua Ian Rosenstein John Moustakas (DC Bar # 422076) Joshua Ian Rosenstein (DC Bar # 482585) Goodwin | Procter LLP 901 New York Avenue, NW Washington, DC 20001 (202) 346 - 4000 (202) 346 - 4444 (fax) Arthur B. Spitzer (DC Bar #235960) Frederick V. Mulhauser, (DC Bar # 455377) American Civil Liberties Union of the National Capital Area 1400 20th St., NW, Suite 119 Washington, DC 20036 (202) 457-0800 (202) 452-1868 (fax) Attorneys for Plaintiff Lindsay Huthnance August 30, 2007 Case 1:06-cv-01871-HHK-JMF Document 25-3 Filed 08/30/2007 Page 4 of 4 Case 1:06-cv-01871-HHK-JMF Document 25-4 Filed 08/30/2007 Page 1 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-4 Filed 08/30/2007 Page 2 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-4 Filed 08/30/2007 Page 3 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-5 Filed 08/30/2007 Page 1 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-5 Filed 08/30/2007 Page 2 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-5 Filed 08/30/2007 Page 3 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-6 Filed 08/30/2007 Page 1 of 4 Case 1:06-cv-01871-HHK-JMF Document 25-6 Filed 08/30/2007 Page 2 of 4 Case 1:06-cv-01871-HHK-JMF Document 25-6 Filed 08/30/2007 Page 3 of 4 Case 1:06-cv-01871-HHK-JMF Document 25-6 Filed 08/30/2007 Page 4 of 4 Case 1:06-cv-01871-HHK-JMF Document 25-7 Filed 08/30/2007 Page 1 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-7 Filed 08/30/2007 Page 2 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-7 Filed 08/30/2007 Page 3 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-8 Filed 08/30/2007 Page 1 of 2 Case 1:06-cv-01871-HHK-JMF Document 25-8 Filed 08/30/2007 Page 2 of 2 Case 1:06-cv-01871-HHK-JMF Document 25-9 Filed 08/30/2007 Page 1 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-9 Filed 08/30/2007 Page 2 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-9 Filed 08/30/2007 Page 3 of 3 Case 1:06-cv-01871-HHK-JMF Document 25-10 Filed 08/30/2007 Page 1 of 2 Case 1:06-cv-01871-HHK-JMF Document 25-10 Filed 08/30/2007 Page 2 of 2 Case 1:06-cv-01871-HHK-JMF Document 25-11 Filed 08/30/2007 Page 1 of 2 Case 1:06-cv-01871-HHK-JMF Document 25-11 Filed 08/30/2007 Page 2 of 2